2016-29463 Reso RESOLUTION NO. 2016-29463
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, ACCEPTING THE
RECOMMENDATION OF THE CITY MANAGER AND WAIVING,
BY 5/7THS VOTE, THE CITY'S COMPETITIVE BIDDING
REQUIREMENT, FINDING SUCH A WAIVER TO BE IN THE
BEST INTEREST OF THE CITY, AND APPROVING AND
AUTHORIZING THE CITY MANAGER TO FINALIZE
NEGOTIATIONS AND EXECUTE (IN A FORM THAT IS
ACCEPTABLE TO THE CITY ATTORNEY) AN AGREEMENT
WITH THE BEANSTALK GROUP IN AN AMOUNT NOT TO
EXCEED $145,000.
WHEREAS, the City of Miami Beach (the "City") is committed to creating a strategic licensing and
merchandising program to enhance the consumer perceptions of Miami Beach as a lifestyle brand,
continue to grow tourism to our destination, and generate external partner revenue streams with a
positive return on investment(the"Program"); and
WHEREAS, to that end, in May 2015, the Administration hired The Beanstalk Group ("Beanstalk")
to create a strategic brand extension program that would deliver a prospecting guidebook, program
management guidebook, and specific category evaluations and recommendations ("Phase 1"); and
WHEREAS, with Phase 1 of the strategy now in place, Beanstalk has submitted a proposal to the
City to build the following essential items needed to execute on the strategy and build a successful
lifestyle brand extension program ("Phase 2"):
• Style Guide— Intensive brand analysis and creation of guidelines for key brand elements,
art direction, inspiration, and an essential tool to ensure a consistent and signature voice
and spirit from all partners (including the creation of a collection of all branding elements
such as logos, tag lines, creative, photography and other imagery);
• Sales materials that are specific to licensing and merchandising partners; and
• Legal contract boilerplate terms that are specific to Miami Beach; and
WHEREAS, the total price for Beanstalk to develop the custom brand development materials
needed to create a successful Program is$145,000; and
WHEREAS, Beanstalk would require approximately 16 weeks to develop Phase 2 of the
Program, not including time for the City's internal review and approvals; and
WHEREAS, the Miami Beach Visitor and Convention Authority ("VCA") has committed a
minimum of $100,000 to fund Phase 2 of the Program; the remainder of the necessary funding would
consist of resort tax revenue; and
WHEREAS, no additional budget enhancements are necessary to fund Phase 2 of the Program;
and
WHEREAS, Beanstalk is ranked number 5 of the top 35 Global Licensing Agents. Beanstalk (i)
has licensed over 5,000 products across every major category, (ii) manages over 600 licensees, and (iii)
has generated over $5 billion in retail sales on behalf of its clients in 2014 alone. Beanstalk's client
roster is comprised of global brands including HGTV Home, Honda, Stanley Black & Decker, U.S. Army,
Energizer as well as the brands within the P&G family; and
WHEREAS, Section 2-367 of the City Code provides that "the city commission, upon written
recommendation of the city manager, may by resolution adopted by a five-sevenths vote of the city
commission waive competitive bidding when the city commission finds such waiver to be in the best
interest of the city. In the event of such a waiver the city commission may authorize the execution of a
negotiated contract"; and
WHEREAS, the City Manager has recommended that the City Commission waive the competitive
bidding requirement, on the basis of Beanstalk's industry reputation, proven success with brand
extensions, and deep understanding of the City of Miami Beach brand, which Beanstalk developed during
its execution of Phase 1 of the Program.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby accept the
recommendation of the City Manager and waive, by a 5/7ths vote, the City's competitive bidding
requirement, finding such a waiver to be in the best interest of the City, and approve and authorize the
City Manager to finalize negotiations and execute (in a form that is acceptable to the City Attorney) an
agreement with The Beanstalk Group in an amount not to exceed $145,000.
PASSED and ADOPTED this /3 day of J47 , 2016.
ATTEST: `
ycy Philip Levine I'
Mayor ,
Rafael E. Granado
City Clerk
T:\AGENDA\2016\JuIy\Communications\Beanstalk Bid Waiver Acceptance Reso 2016 FINAL.doc
APPROVED AS TO
FORM & LANGUAGE
&FOR EXECUTION
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City Attorney \ Dote
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COMMISSION ITEM SUMMARY
Condensed Title:
A Resolution authorizing the waiving by a 5/7th vote,the formal competitive bidding requirements and authorizing the
city manager, to execute an agreement with Beanstalk in the amount of$145,000.
Key Intended Outcome Supported:
To create a strategic licensing and merchandising program to enhance the consumer perceptions of Miami
Beach as a lifestyle brand,continue to grow tourism to our destination,and generate external partner revenue
streams.
Supporting Data (Surveys, Environmental Scan, etc.): N/A
Item Summary/Recommendation:
In 2015, the Administration identified the creation of an official City of Miami Beach store as a possible avenue to
generate additional revenue,while also supporting ongoing efforts to build and maintain the city's brand. To that end,
the city began seeking a promotional items distribution company to manufacture(or have manufactured through a
third-party), market, promote,sell and distribute city promotional items and souvenirs through an online store to be
branded exclusively for city purposes.
During this process the Administration met with New York City's licensing team as well as attended an educational
conference regarding licensing. Through this research the overall approach to licensing was reexamined. Based on
the feedback and discussions from professionals in licensing and tourism it is believed that starting an online store,
prior to placing merchandise in stores, may not be successful. As such,the administration recommended doing an
overall analysis of our current licensed marks as well as what inventory could be licensed and work directly with
manufacturers through non-exclusive license agreements to place official Miami Beach merchandise in stores.
The administration began contacting possible companies to quote a consulting project to write a strategic licensing
plan for the City. Using recommendations and industry websites, 10 companies were contacted and 8 responses
were received. As each quote was analyzed it became apparent that one company, Beanstalk, stood out with
experience in the areas that are most important.
Beanstalk is a large company that has offices located in New York, Los Angeles, Cincinnati, Miami and London.
Beanstalk is currently ranked number 5 out of 35 global licensing agents according to the Licensing Industry
Merchandising Association. The company is divided into 6 categories,brand representation,direct-to-retail,celebrity
representation, manufacturer representation, royalty auditing, and brand consulting. Some of the companies that
Beanstalk has worked with include HGTV Home, Honda, Wolfgang Puck, and Jaguar. Some of their strategic
partnerships include working with Jaguar to create a lifestyle brand,luggage line,luxury apparel and fragrance. They
also worked with HGTV Home to conceive and develop a collection of smart and stylish products across a wide
variety of home and garden categories. Through this creation they also helped with the creation of packaging,
marketing and POS materials.
In May 2015,the Administration entered into an agreement with Beanstalk,the consulting arm of Beanstalk,to create
a strategic licensing and merchandising program("Program")to enhance the consumer perceptions of Miami Beach
as a lifestyle brand, and to continue to grow tourism to our destination ("Phase 1"). The Program will additionally
generate external partner revenue streams with a positive return on investment.
After analysis and research, Beanstalk delivered various analyses and reports to the City, including a prospecting
guidebook, program management guidebook, and specific category evaluations and recommendations.
The next steps in the process would be to continue working with Beanstalk to build the essential items needed to
launch a successful lifestyle brand and licensing program("Phase 2"). These items include:
• Style Guide—Including an intensive overall brand and logo analysis and creation,creation of guidelines for
key brand elements, art direction, product inspiration and an essential tool to ensure a consistent and
signature voice and spirit from all partners.
o This would include creating a collection of all branding elements such as logos,tag lines,creative,
photography and other imagery.
• All sales Materials — custom to the City of Miami Beach and specific to licensing and merchandising
partners
• Legal contract boilerplate — Licensing contract specific to Miami Beach. This would also include all
recommended language and standard royalty rates
The total price for Beanstalk to prepare and create all of the custom brand development materials needed to create a
successful program is$145,000. The timeline to implement would be approximately 16 weeks,not including the time
needed for the City's internal review and approvals.The Miami Beach Visitor and Convention Authority("VCA")has
committed a minimum of$100,000 to fund Phase 2 of the Program. Remaining funding for this agreement would
consist of resort tax revenue. No additional budget enhancements are necessary.
efa MIAMI BEACH AGENDA ITEM e 78
DATE 2-3-A2
Advisory Board Recommendation:
N/A
Financial Information:
Source of Amount Account
n
Funds: 1 100,000 VCA Grant
.�' {-� 2 45,000 160-4300-000362
"��v OBPI Total 145,000
Financial Impact Summary:
City Clerk's Office Legislative Tracking:
Tonya Daniels, Communications Director
Sign-Offs:
Department Director t. .t City Manager City Ma ager
tar ��•
T:\AGENDA\2016\June\Communications\Beanstal :id aiver Acceptance Summary2016_TONYA rDITS.doc
MIAMI BEAC
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov
COMMISSION MEMORANDUM
TO: Mayor Philip Levine and Members o he City Co mission
FROM: Jimmy L. Morales, City Manager
DATE: July 13, 2016
SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, ACCEPTING THE RECOMMENDATION OF THE
CITY MANAGER AND WAIVING, BY 5/7THS VOTE, THE CITY'S COMPETITIVE
BIDDING REQUIREMENT, FINDING SUCH A WAIVER TO BE IN THE BEST
INTEREST OF THE CITY, AND APPROVING AND AUTHORIZING THE CITY
MANAGER TO FINALIZE NEGOTIATIONS AND EXECUTE (IN A FORM THAT
IS ACCEPTABLE TO THE CITY ATTORNEY) AN AGREEMENT WITH THE
BEANSTALK GROUP IN AN AMOUNT NOT TO EXCEED $145,000.
ADMINISTRATION RECOMMENDATION
Waive the competitive bidding requirement, by 5/7ths vote, and adopt the Resolution.
BACKGROUND
In 2015, the Administration identified the creation of an official City of Miami Beach store as
a possible avenue to generate additional revenue, while also supporting ongoing efforts to
build and maintain the city's brand. To that end, the city began seeking a promotional items
distribution company to manufacture (or have manufactured through a third-party), market,
promote, sell, and distribute City-branded promotional items and souvenirs through an
online store to be branded exclusively for City purposes.
During this process, the Administration met with New York City's licensing team, and
attended an educational conference regarding licensing. Through this research the overall
approach to licensing was reexamined. Based on the feedback and discussions from
professionals in licensing and tourism it is believed that starting an online store, prior to
placing merchandise in stores, may not be successful. As such, the Administration
recommended (i) performing an overall analysis of our current licensed marks, as well as
what inventory could be licensed, and (ii) working directly with manufacturers through non-
exclusive license agreements to place official Miami Beach merchandise in stores.
The Administration began contacting possible companies to provide quotes for a consulting
project to write a strategic licensing plan for the City. Relying upon recommendations and
industry websites, the Administration contacted ten (10) companies, eight (8) of which
submitted responses. As the Administration analyzed each quote, it became apparent that
one company, The Beanstalk Group ("Beanstalk"), stood out with experience in the area of
brand extensions.
■
Beanstalk is a large company that has offices located in New York, Los Angeles, Cincinnati,
Miami, and London. Beanstalk is currently ranked number 5 out of 35 global licensing
agents according to the Licensing Industry Merchandising Association. Beanstalk is divided
into 6 categories: brand representation, direct-to-retail, celebrity representation,
manufacturer representation, royalty auditing, and brand consulting. The Administration
would work directly with Beanstalk's brand consulting division.
The consulting division of Beanstalk is referred to as Blueprint. This division focuses solely
on consulting. Some of the companies that Beanstalk has worked with include HGTV
Home, Honda, Wolfgang Puck, and Jaguar. Some of Beanstalk's strategic partnerships
include working with Jaguar to create a lifestyle brand, luggage line, luxury apparel and
fragrance. Beanstalk also worked with HGTV Home to conceive and develop a collection of
smart and stylish products across a wide variety of home and garden categories. Through
this creation they also helped with the creation of packaging, marketing, and point-of-sale
(POS) materials.
In May 2015, the Administration entered into an agreement with Blueprint, the consulting
arm of Beanstalk, to create a strategic licensing and merchandising program ("Program") to
enhance the consumer perceptions of Miami Beach as a lifestyle brand, and to continue to
grow tourism to our destination ("Phase 1"). The Program will additionally generate external
partner revenue streams with a positive return on investment.
After analysis and research, Blueprint delivered various analyses and reports to the City,
including a prospecting guidebook, program management guidebook, and specific category
evaluations and recommendations.
ANALYSIS
The next steps in the process would be to continue working with Beanstalk to build the
essential items needed to launch a successful lifestyle brand and licensing program ("Phase
2"). These items include:
• Style Guide — Intensive brand analysis and creation of guidelines for key brand
elements, art direction, inspiration and an essential tool to ensure a consistent and
signature voice and spirit from all partners.
o This would include creating a collection of all branding elements such as
logos, tag lines, creative, photography and other imagery.
• Sales Materials—specific to licensing and merchandising partners
• Legal contract boilerplate - specific to Miami Beach
The total price for Beanstalk to prepare and create all of the custom brand development
materials needed to create a successful program is $145,000. The timeline to implement
would be approximately 16 weeks, not including the time needed for the City's internal
review and approvals. The Miami Beach Visitor and Convention Authority ("VCA") has
committed a minimum of $100,000 to fund Phase 2 of the Program. Remaining funding for
this agreement would consist of resort tax revenue. No additional budget enhancements are
necessary.
CONCLUSION
In an effort to cultivate the Miami Beach lifestyle brand, grow tourism, and generate
additional revenue streams, the City Manager and the Administration recommend that the
Mayor and City Commission waive the competitive bidding requirement, and authorize the
City Manager to finalize negotiations and execute (in a form that is acceptable to the City
1
Attorney) a new Agreement with Beanstalk, to allow Beanstalk to create the design
foundations for the City's licensing program. The City Manager recommends that the Mayor
and City Commission waive the competitive bidding requirement on the basis of Beanstalk's
industry reputation, proven success with brand extensions, and deep understanding of the
City of Miami Beach attained through executing Phase 1 of the Program.
JLM/MM/TD
•
PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF MIAMI BEACH
AND
THE BEANSTALK GROUP, LLC
FOR
CONSULTING SERVICES TO IMPLEMENT
THE CITY'S LICENSING AND MERCHANDISING PROGRAM
This Professional Services Agreement ("Agreement") is entered into this day of May,
2016 ("Effective Date"), between the CITY OF MIAMI-,BEACH, FLORIDA, a municipal
corporation organized and existing under the laws of the_State of Florida, having its principal
offices at 1700 Convention Center Drive, Miami Beach-;F_lorida, 33139 ("City'), and The
BEANSTALK GROUP, LLC, a Delaware limited liability ,company, whose address is 220 East
42"d Street, New York, NY 10017("Consultant"). Tom ,
SECTION 1
DEFINITIONS
Agreement: This Agreementbetween the City=arid-Consultant, including any exhibits
and amendmentstFiereto.
ems_
City Manager: The chief administrative-officer_of the City,:The City Manager's designee
shall be.the Director of Communications.
Consultant: ;.Foy the purposes of tfiis=Agreement,`Consultant shall be deemed to be an
independent ontractor,-and''not an agent or employee of the City.
Services: All services work and actions:by the Consultant performed or undertaken
pursuantt the Agreement.
Fee: Amount paid the Consultant as compensation for Services.
Exhibits: Exhibit Licens g`Consultant Scope of Services
Exhibit BConsultant Proposal
.Exhibit
C'fiPi.oject Timeline
Risk Manager: Ttie
power point presentation and a written handbook, as more particularly described in Exhibit "A"
hereto (the "Services"). Any proposed additional cervices shall be subject to a separate
2.2 Consultant's Services, and any deliverables incident thereto, shall be completed in
accordance with the timeline and/or schedule in Exhibit A"hereto.
2.3 The City acknowledges and agrees that in order for Consultant to effectively perform its -.{Formatted:Font:Not Bold
services hereunder in a timely and efficient manner, the City must cooperate with Consultant
and make available on a timely basis appropriate personnel, management decisions,
information, and/or approvals.
2.4 The services provided by Consultant=must;.meet thhe be approval approved
and accepted by ef-the City (which approval or=acceptance shall not be unreasonably
conditioned, delayed, or denied)in order for Consultanito receive its Fee. and-be-subjeot-to-the
unreasonably conditioned,delayed or denied.::` :-;:-
2.5 No Proprietary Rights Reserved by Consultant. Consultant warrants and represents that
it has ownership of and rights to any and all of'C'onsultant forms, products, services and
materials utilized in connection with=the Services't3eiag'provided erg-behalf ofto the City
("Consultant Resources"). Consultant`g ants the City the:,,right to use and a non-exclusive
license in, all patents, trademarks, service marks,copyrights and other rights in and to any and
all of Consultant Resources, in connect on with Services being provided on-behalf-ofto the City.
Consultant hereby acknowledges and agrees that i allwritings-agreements, works, marks,
market plans, intellectual`=property,and any=other products being-that are created by Consultant
specifically and exclusively on'tiehalf of andw.for=the benefit=of the City (with-the--uec of-the
Consultant Resourccg)`(collectively,"City Resources") shall be the property of the City and
Consultant shall not have;_a claim:`to said-such_ City Resources upon completion or early
termination,of=this>Agreement,.consultant may`use;the City's Markcmarks; in connection with
providing the>City with,,the Sewices u44-deFSet forthrin this Agreement, upon the prior written
consentn of the City Manager�or his designee; however, all City Marks-marks shall remain
the property of the City and Consu_itant shall not have the right to use said-any City Marks
marks subsegq ent to the completion&nearly termination of this Agreement.
SECTION 3
-`.; TERM
The term of this Agreement (Term") shall commence upon execution of the this agreement
Agreement by the parties hereto,which shall also be the Effective Date on p. 1 hereof, and shall
have an initial term of three (3) months, provided that the parties agree that time is not of the
essence of this Agreement, and it shall not be deemed to be a material breach of this
Agreement if Consultant's completion reasonably takes more than three (3) months due to
delays caused by City, any mutually agreed changes in the scope of this engagement or
deliverables hereunder, or other changes in circumstance. as the parties may mutually agree in
writing.
Notwithstanding the Term provided herein, and subject to the foregoing,Consultant shall adhere
to any specific timelines, schedules, dates, and/or performance milestones for completion and
2
i.
delivery of the Services, as same is/are set forth in the timeline and/or schedule referenced in
Exhibit G-"A"hereto. ---{Formatted:Font:Not Bold
Formatted:Font:Not Bold
ti- ti
"o -e
1_
∎<-;. =�
3
•
SECTION 4 • Formatted:No underline
FEE ' Formatted:Space After: 0 pt
4.1 In consideration of the Services to be provided, and pursuant to the manner-provisions
of this Section lspecified in section '1.2 herein, the City shall compensate Consultant e
won a fixed fee basis, in the-a total amount e-not to exceed $140,000 (exclusive of
any Out-of-Pocket Costs, as set forth in Section 4.2 herein).
4.2 Consultant's travel, and all other out-of pocket expenses such as industry research,shall
be billed separately with no mark-up (Gellcctivelycollectively, "Out-of-Pocket Costs"). Any
Consultant shall obtain the prior written approval of the City Manager Out of Pocket Costs-shall
first be approved, in writing, by the City Manager or his designee prior to incurring any expense
for samcOut-of-Pocket Costs, provided, however, -that_petthe City Manager's prior written --{Formatted:Font:Not Italic
approval shall not be necessary for expenses less than•one Hundred' Dollars ($100} each. In
no event shall any-Consultant's Out-of-Pocket Costs exceed a total of $5,000-Fn-total. If
deemed acceptable by the City Manager or his designee. Consultant's Out-of-Pocket Costs
shall be promptly reimbursed by City within thirty(30)days of submission by Consultant.
4, 1.3 The Consultant's Fee is-shall be due y
and P a able as follows: Formatted:Font:(Default)Arial,11 pt,Bold
• Formatted:List Paragraph,Outline numbered
4.3.1 The City shall pay Consultant $20,000 due-an a a- -= - e •- •-- •-- !-teupon +Level:2+Numbering Style:1,2,3,...+0
-- ' Start at:3+Alignment:Left+Aligned at: "+
execution of this Agreement. Indent at: 0.25'
.. . • ' Formatted:Indent:Left: 0.75", No bullets or
numbering
4.3.2 The City shall pay Consultant $50,000 due and payable upon delivery of f+aa#-the
• Formatted:Font:Not Bold
style guide,as further described in Exhibit"A"hereto.
• Formatted:List Paragraph,Indent:Left:
The City shall pay Consultant, Numbering ingine Style:1,2, +Level:3+
' Numbering Style:1,2,3,...+Start at:1+
.4.3.3 $70,000 due and payable upon final delivery and acceptance by the City of all Alignment:Left+Aligned at: 0"+Indent at:
remaining deliverables set forth in Exhibit"A" hereto,which acceptance shall not be 0.5"
unreasonably conditioned,withheld or delayed, Formatted:Font:(Default)Arial,11 pt
Formatted:List Paragraph,Indent:Left:
4.4 INVOICING 0.75", No bullets or numbering
Formatted:Font:Not Bold
Upon receipt of an acceptable and approved invoice, payment(s)shall be made within thirty(30) ; Formatted:List Paragraph,Indent:Left:
days for that portion (or those portions) of the Services satisfactorily rendered (and referenced ; 0.25",Outline numbered+Level:3+
in the particular invoice). Numbering Style:1,2,3,...+Start at:1+
Alignment:Left+Aligned at: 0"+Indent at:
Invoices shall include a detailed description of the Services (or portions thereof) provided, and - — —
shall be submitted to the City at the following address: i.': Formatted:Font:(Default)Arial,11 pt
Formatted:List Paragraph,Indent:Left:
City of Miami Beach 0.75", No bullets or numbering
1700 Convention Center Drive Formatted:Font:(Default)Arial,11 pt
Miami Beach, FL 33139 Formatted:List Paragraph,Indent:Left:
Attention: Tonya DanicloMax Sklar 0.25",Outline numbered+Level:3+
Numbering Style:1,2,3,...+Start at:1+
Alignment:Left+Aligned at: 0"+Indent at:
4.5 Late payments shall bear interest compounded daily at the lesser of: (i) 1.5% per month : 0.5"
or part thereof;or(ii)the highest rate allowed by law;which in either case is applicable from the Comment[w11:Can the payment schedule be
further broken down?
-- -- - - - -- - - --- - -- - - - - Formatted:Font:(Default)Arial,11 pt
4
limitation, all collection fees, attorney's fees and court costs) in collecting any past due amount
from City.
SECTION 5
TERMINATION
5.1 TERMINATION FOR CAUSE
If the Consultant shall fail to fulfill in a timely manner, or otherwise violates, any of the
covenants, agreements, or stipulations material to this Agreement, the City, through its City
Manager, shall thereupon have the right to terminate this=Agreement for cause. Prior to
exercising its option to terminate for cause, the City shall.Otify the Consultant of its violation of
the particular term(s) of this Agreement, and shall grarttConsultant ten (10) business days to
cure such default. If such default remains uncured aftei ten=(10) business days, the City may
terminate this Agreement without further notice to„Cons`ultant. 'Notwithstanding the foregoing, if
termination is based upon a misrepresentation orfraud, the Agreement may be terminated for
cause, effective immediately, upon written_n`otification to Consultant-,and without providing
Consultant with a cure period. Upon terminate=the City shall be fully d scharged from any and
all liabilities, duties, and terms arising out of or-OVVirtue of this Agreement ,�
Notwithstanding the above, the Consultant shall not=be relieved of liability=fo the City for
damages sustained by the City by a y each of the Ag Bement by the Consultant. The City, at
its sole option and discretion, shall be`entitfed to bring anyaid_all legal/equitable actions that it
�v
deems to be in its best interest in order to"enforce the -Citys right and remedies against
Consultant. The City shalhbe_entitled to recover all costs of sulch;=actions, including reasonable
attorneys'fees. �� -_
5.2 TERMINATION:FOR CONVENIENCE OF=THE CITY
THE CITY,MAY ALSO, THROUGH ITS:CITY'MANAGER, AND FOR ITS CONVENIENCE
AND WITHOUTCAUSE,TERMINATE THE'-AGREEMENT AT ANY TIME DURING THE TERM
BY GIVING 1NRITTEN'NOTICE`-TO„CONSULTANT OF SUCH TERMINATION;WHICH SHALL
BECOME.,,EFFECTIVE-WITHIN SEVEN (7)'DAYS FOLLOWING RECEIPT BY THE
CONSULTANT OF SUCH _NOTICE, IF THE AGREEMENT IS TERMINATED FOR
CONVENIENCE_BY THE CITY;CONSULTANT SHALL BE PAID THE FEE IN FULLFOR ANY
SERVICES SATISFACTORILY .PERFORMED UP TO THE DATE OF TERMINATION;
FOLLOWING WHICH THE CITY SHALL BE DISCHARGED FROM ANY AND ALL
LIABILITIES, DUTIES;_ANDeTERMS ARISING OUT OF, OR BY VIRTUE OF, THIS
AGREEMENT.
5.3 TERMINATION FOR-INSOLVENCY
The City also reserves the right to terminate the Agreement in the event the Consultant is
placed either in voluntary or involuntary bankruptcy or makes an assignment for the benefit of
creditors. In such event, the right and obligations for the parties shall be the same as provided
for in Section 5.2.
SECTION 6
INDEMNIFICATION AND INSURANCE REQUIREMENTS
5
•
6.1 INDEMNIFICATION
Contractor agrees to indemnify and hold harmless the City of Miami Beach and its officers,
employees, agents, and contractors, from and against any and all actions (whether at law or in
equity), claims. liabilities. losses, and expenses, including. but not limited to, attorneys'fees and
costs. for personal. economic or bodily injury, wrongful death, loss of or damage to property,
which may arise or be alleged to have arisen from the negligent acts, errors, omissions or other
wrongful conduct of the Contractor, its officers. employees. agents. contractors. or any other
person or entity acting under Contractor's control or supervision, in connection with, related to.
or as a result of the Contractor's performance of the Services pursuant to this Agreement. To
that extent. the Contractor shall pay all such claims and lossesand shall pay all such costs and
judgments which may issue from any lawsuit arising frorrsueh claims and losses, and shall pay
all costs and attorneys' fees expended by the City irC>tff defense of such claims and losses.
including appeals.
The parties agree that one percent (1%):'of'the total compensation to Contractor for
performance of the Services under this Agreement is the specific consideration from the City to
the Contractor for the Contractor's indemnity ag?eement. The:provisions'of<this Section 6.1 and
of this indemnification shall survive termination or expiration=`ofthis Agreement Consultant-agrees to indemnify-afld l old--iacrnte':-t Sif~y--of-Miami-Beaoh and--its-officers
employees, agents, and contractors of the foregoing`being a "City Indemnified Person")
la°sec, a ad-expenses--inslud+ng—but-sN#ti::to attorney,.';-fees-and-cost-s-(seHectively;
"Damages"), relating to,,ar ing_out of or`n conncet n-with the`activities performed or services
furnished by Consultant pursuant to this'-Agreemeethe transactions contemplated hereby,
Cer rsultant's-role-in er eotionlIthcr-ewith,ea ultant's'engagement-hereunde�in-gene raI,
to the extent that any such Damages have resulted from the Consultant's negligence, errors,
emissions otkie�willfe4 ssonduct er-fraud of-the-Consultant;its-offleers,-employees, agents;
contractors,or--:any.other 'or
persoci _entity`acting�uiuder Consultant's control or supervision, in
..
pursuari#=t tl}is Agree a eat—To:'that extent;'--the:.Consultant-shalt-pay--all-suer-Damages-and
shall payall such costs and judgrrbnts which may issue from any lawsuit arising from such
such claims and losses, including appeals:
in connection therewith, and Consultant's engagement hereunder in general, to the extent that
any such Damages have resulted from the City's negligence, errors, omissions or other willful
misconduct or fraud of the City, its officers, employees, agents, contractors, or any other person
or entity acting under the City's control or supervision. To that extent, the City shall pay all such
Damages and shall pay all such costs and judgments which may issue from any lawsuit arising
Nothing contained in this section or elsewhere in this Agreement is in any way intended to be a
waiver of the limitation placed upon the City's liability, as vet forth in Section 768.28. Florida
Statutes.
6.2 INSURANCE REQUIREMENTS
The Consultant shall maintain and carry in full forceduring the Term;the following insurance:
1. General Liability, in the amount of$1,000,000;
2. Professional Liability, in the amount of$200,000and 1�
3.Workers Compensation& Employers Liability, as requiredi`pursuant to Florida_Statutes.
The insurance must be furnished by insurance companies authorized to do business in the
State of Florida. All insurance policiesmus`t,6e_issued by companies rated no less than"B+" as
to management and not less than "Class VI"=a*to strength by the latest edition of Best's
Insurance Guide, published by A.M. Best Nei Jersey,or its equivalent.
Consultant shall provide the Cit`yswritten notice at-least-thirty (30) days prior to termination,
cancellations or reduction.in coverage in the policy;' •
Original cer_�tificates_:of insurancemust be submitted to the City's Risk Manager for approval
(prior to any�work`=and/o;ser ices'comme icing)andlwill be kept on file in the Office of the Risk
Managed The insurarice_.poliaies for General Liability shall include the City as an additional
insured and contain a waiver of subrogation endorsement, and the Professional Liability shall
include a`waiver of subrogation-endorsement.
The Consultant s:;also solely responsible for obtaining and submitting all insurance certificates
for any sub-consultants.
Compliance with the foregoing requirements shall not relieve the Consultant of the liabilities and
obligations under this Sectin_or under any other portion of this Agreement.
The Consultant shall not commence any work and or services pursuant to this Agreement until
evidence of all insurance required under this Section has been provided to and approved by the
City's Risk Manager.
SECTION 7
LITIGATION JURISDICTIONNENUE/JURY TRIAL WAIVER
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This Agreement shall be construed in accordance with the laws of the State of Florida. This
Agreement shall be enforceable in Miami-Dade County, Florida, and if legal action is necessary
by either party with respect to the enforcement of any or all of the terms or conditions herein,
exclusive venue for the enforcement of same shall lie in Miami-Dade County, Florida. By
entering into this Agreement, Consultant and the City expressly waive any rights either party
may have to a trial by jury of any civil litigation related to or arising out of this Agreement.
SECTION 8
LIMITATION OF LIABILITY
The City desires to enter into this Agreement only if in so doing the City can place a limit on the
City's liability for any cause of action,for money damages due to an alleged breach by the City
of this Agreement, so that its liability for any such breach never exceeds the sum of
$50145,000. less any amounts actually paid by the City as of the date of the alleged breach.
Consultant hereby expresses its willingness to enter into this Agreement with its recovery from
the City for any damage action for breach of contract to be limited to a maximum amount of
$50145,000, less any amounts actually paid by the City as of the date of the alleged breach.
Accordingly, and notwithstanding any other term or condition of this Agreement, Consultant
hereby agrees that the City shall not be liable to the Consultant for damages in an amount in
excess of$50145,000, less any amounts actually paid by the City as of the date of the alleged
breach, for any action or claim for breach of contract arising out of the performance or non-
performance of any obligations imposed upon the city-City by this Agreement.
Nothing contained in this section or elsewhere in this Agreement is in any way intended to be
a waiver of the limitation placed upon the City's liability, as set forth in Section 768.28, Florida
Statutes.
Consultant desires to enter into this Agreement only if in doing so Consultant shall not be
failure to fellow-the-T-ools-as-prepared by Consut-ant for-the-C-ity; o the-City's anisapplisation
of said Tools.
SECTION 0
ConzultantNeither party shall nat-be liable to the other for any consequential, incidental,
special, punitive or exemplary damages, or lost profits or cost of procurement of substitute
services, even if Consultant the non-breaching party has been apprised of the likelihood of
such damages occurring. City Each party acknowledges and agrees that it shall rely only on
the advice of its own attorneys as to all legal matters, including, without limitation, the terms
and legal effect of every any License license Ag:e ;tgreement prepared or entered into
pursuant to this Agreement-. and tThe services provided by Consultant and its employees
shall not in any respect be construed as the provision of legal advice, nor shall any attorney-
client relationship be created between City, on the one hand, and Consultant and its
employees,on the other hand.
SECTION 10
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I
GENERAL PROVISIONS
10.1 AUDIT AND INSPECTIONS
Upon reasonable verbal or written notice to Consultant, and at any time during normal
business hours (i.e. 9AM — 5PM, Monday through Fridays, excluding nationally recognized
holidays), and as often as the City Manager may, in his/her reasonable discretion and
judgment, deem necessary, there shall be made available to the City Manager, and/or such
representatives as the City Manager may deem to act on the City's behalf, to audit, examine,
and/or inspect, any and all other documents and/or records relating to all matters covered by
this Agreement. Consultant shall maintain any and all such records at its place of business at
the address set forth in the"Notices"section of this Agreemen
10.2 [INTENTIONALLY DELETTED]
. --�
_ _ �
"ate°
-`r"' r_ am ` --
ti
- tip.
9
10.3 ASSIGNMENT,TRANSFER OR SUBCONSULTING
Consultant shall not subcontract, assign, or transfer all or any portion of any work and/or
service under this Agreement without the prior written consent of the City Manager, which
consent, if given at all, shall be in the Manager's sole judgment and discretion. Neither this
Agreement, nor any term or provision hereof, or right hereunder, shall be assignable unless as
approved pursuant to this Section, and any attempt to make such assignment (unless
approved)shall be void.
10.4 PUBLIC ENTITY CRIMES
Prior to commencement of the Services, the Consultant shallfile a State of Florida Form PUR
7068, Sworn Statement under Section 287.133(3)(a).FloridaStatute on Public Entity Crimes
with the City's Procurement Division.
10.5 EQUAL EMPLOYMENT OPPORTUNITY
In connection with the performance of the`Services. the Contracto shall not discriminate
against any employee or applicant for employment because.of race, color-, national origin,
religion, sex, gender identity. intersexuality. sexual'orientat`o'n; disability. maital and familial
status, or age.
connection with the performance of`the Services,'`the__Consultant shall not discriminate
against any employee or applicant fo;.employment becauso of race. color, national origin,
religion, sex,gender scxuel-or-e tat on t+sabal+ay;rraiital_and-facn+hal-status,or age-
10.6 CONFLICT OF_INTEREST I COMPLIANCEWITHAPPLICABLE LAWS
In its performance oft.the work and/or services Contractor shall comply with all applicable
laws, ordinances and regulations ofthe City. Miami-Dade County. the State of Florida and the
federal government, as applieabl`e_ s-,.
Contractor--herein agrees-to adhere.to and be:goVerned by all applicable Miami-Dade County
Conflictoflnterest Ordinances arid0Ethics provisions. as set forth in the Miami-Dade County
Code. ar` as may be ame``nded fron fii ie to time; and by the City of Miami Beach Charter and
Code(as maybe amended from time t'6 fime); both of which are incorporated by reference as
if fully set forthlK rein.
Contractor covenants that it Presently has no interest and shall not acquire any interest,
directly or indirectly, whfeh.couleconflict in any manner or degree with the performance of the
Services. Contractor furtfieWovenants that in the performance of this Agreement, Contractor
shall not employ any person having any such interest. No member of or delegate to the
Congress of the United States shall be admitted to any share or part of this Agreement or to
any benefits arising there from.
10.6 CONFLICT OF INTEREST
The Consultant herein agrees to adhere to and be governed by all applicable Miami Dade
County Conflict of Interest Ordinances and Ethics provisions, as set forth in the Miami Dade
incorporated by reference herein as if fully set forth herein.
10
The Consultant covenants that it presently has no interest and shall not acquire any interest,
direct or indirectly, which could conflict in any manner or degree with the performance of the
Services. The Consultant further covenants that in the performance of this Agreement, no
person having any such interest shall knowingly be employed by the Consultant. No member
of or delegate to the Congress of the United States shall be admitted to any share or part of
this Agreement or to any benefits arising there from.
SECTION 11
NOTICES
All notices and communications in writing required or perfnitted hereunder, shall be delivered
personally to the representatives of the Consultant andithe City listed below or may be mailed
by U.S. Certified Mail, return receipt requested, postage-prepaid;irby a nationally recognized
overnight delivery service. ,= =`
Until changed by notice in writing, all such notices and communication§'shall be addressed as
follows: - °
TO CONSULTANT: The.Beanstalk 60.1-0-11.11C ---{Formatted:Font:Not Bold
220YEast 42nd Street:
-{Formatted:Font:Not Bold
15th Floofz =;
New York,'NY.-1.0017 - _,
Attenion: Marc DSchneide` CFO,COO
212.42388:(fa) - -
1 _
TO CITY: City of Mial Beach ---{Formatted:Font:Not Bold
�` 1r-----,_.,,,-,.--,--0 onvention Center Drive
—?`. � lm?Beach,0133139
~ `�,_Attention,:Max A. Sklar
`_ ` 305.673.7063(fax)
Notice may also;be provided to any other=address designated by the party to receive notice if such
alternate address is,provided viaU S. certified mail, return receipt requested, hand delivered,or by
overnight delivery Iri,the event;-"an alternate notice address is properly provided, notice shall be
sent to such alterna a address_insaddition to any other address which notice would otherwise be
sent,unless other deliveryjinstriuctibn as specifically provided for by the party entitled to notice.
Notice shall be deemed given on the day on which personally served, or the day of receipt by
either U.S.certified mail or overnight delivery.
SECTION 12
MISCELLANEOUS PROVISIONS
12.1 CHANGES AND ADDITIONS
11
•
This Agreement cannot be modified or amended without the express written consent of the
parties. No modification, amendment, or alteration of the terms or conditions contained herein
shall be effective unless contained in a written document executed with the same formality and
of equal dignity herewith.
12.2 SEVERABILITY
If any term or provision of this Agreement is held invalid or unenforceable, the remainder of this
Agreement shall not be affected and every other term and provision of this Agreement shall be
valid and be enforced to the fullest extent permitted by law.
12.3 ENTIRETY OF AGREEMENT
The City and Consultant agree that this is the entire=Agreement between the parties. This
Agreement supersedes all prior negotiations, correspondence conversations, agreements or
understandings applicable to the matters contairf d herein, andthere are no commitments,
agreements or understandings concerning the subject matter of this Agreement that are not
contained in this document. Title and paragraphheadings are for convenient reference and are
not intended to confer any rights or obligations upoh-the parties to this Ag Bement.
12.4 NO JOINT VENTURE
The parties to this Agreement each shall b'e=deemed to be independent contractors and in no
event shall the acts or omissions of one party be attributable to`the other party. Neither party,
nor its employees, shall,ber,orshall be deemed to be an,employee of the other party for any
purpose whatsoever.-;Nothing:herein contained shall be construgfto place the parties in the
relationship of partre s joint venturers, or-any egency relationship, and neither party shall
have any right or power to obligate:or bind ttie other in any manner whatsoever except as
authorized in this or otherwise specifically authorized in writing.
12.5 During the Term of this Agreement and for a period of twelve (12) months thereafter;
City shall not qngagc in any diccu°ions, dire- . - . - . • ••'4.- '-s, regarding
soliciting, recruiting, engaging or hiring, for consulting, full time or part time employment;
foregoing limitations as to time, geographical area, and scope of activity are reasonable and
protect the goodwill and other business interests of Consultant] Comment[W2]:The City cannot agree to such a
restraint on public employment.
12.6 There are no representations, promises, agreements, warranties, covenants or
undertakings other than those expressly contained in this Agreement. This Agreement is the
product of arms-length negotiations between parties knowledgeable of its subject matter who
have had the opportunity to consult counsel concerning the terms and conditions of this
Agreement prior to the execution hereof. Any rule of law that would require interpretation of any
provision against the party responsible for its inclusion herein shall have no effect on the
interpretation of this Agreement. The headings on each paragraph hereof are for convenience
purposes only and shall not be used to construe the terms of this Agreement.
I 12.7 This Agreement may be executed in counterparts, each of which shall be deemed an-- {Formatted:Justified
original, but all of which together shall constitute one and the same instrument. A facsimile
12
I
copy, or electronic copy in .pdf or similar format, of an executed counterpart shall be valid and
have the same force and effect as an original.
;e
•cam." °"` — '�
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13
1
IN WITNESS WHEREOF,the parties hereto have caused this Agreement to be executed
by their appropriate officials, as of the date first entered above.
FOR CITY: CITY OF MIAMI BEACH, FLORIDA
ATTEST:
..
By:
Rafael E. Granado, City Clerk JimmyL=Morales,City Manager
-D`ate:
FOR CONSULTANT:
THE BEANSTALK GROUP, LLC
ATTEST: , -
By: _
Chief Legal;Off_icer „` .Marc D. Schneider,! Chief Financial Officer ._ Comment[W3]:is Marc Schneider authorized to
„�.,�';,.—V-.,.1 =� - `� �'�: "'"' _ _ - __ . . - .._._-- --------------- bind the ompany'.'Please provideproofof
°°=` -- and Chief Operating Officer
' ``' ,�`� - - �_ authorization to sign.
Pririf Name
—z.--.---.._----:=,_ �: - � .
Date:
14
EXHIBIT A • {Formatted:Centered
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